U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161097 Agency No. 200IVI072015103420 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 17, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist at the Agency's facility in Duluth, Georgia. On May 14, 2015, Complainant contacted the EEO Counselor alleging harassment. Complainant opted to participate in the Agency's Alternative Dispute Resolution (ADR) program. On August 11, 2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint (Notice). Complainant indicated to the EEO Counselor that the informal matter was still with the ADR program and was to be mediated on August 18, 2015. The EEO Counselor acknowledged that the matter was still pending ADR. Complainant also noted that the EEO Counselor failed to list all of the events that have occurred. Complainant and the EEO Counselor engaged in additional email exchanges regarding the scheduling of mediation. The Agency's Counsel could not attend the mediation scheduled for August 18, 2015. The parties engaged in email exchanges trying to find another date for ADR to take place. Subsequently, mediation did occur until November 2, 2015. ADR did not resolve his claim of discrimination, therefore, Complainant contacted the EEO Office trying to figure out how to proceed with his formal complaint. On November 10, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of national origin (Hispanic), disability, age, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973. In support of his claim, Complainant indicated that the following events occurred: 1. From March 16, 2015 - ongoing, Supervisor Medical Center Director (Supervisor) and the Executive Assistant to Director (EAD) failed to take action when Complainant reported that a coworker (Coworker) harassed and bullied him by following him into the restroom, interfering with his work performance, monitoring when he arrived at work and returned from lunch, and referring to him as "Jose". 2. On May 5, 2015, the Coworker yelled at Complainant in an angry and threatening tone telling complainant that he was not supposed to make personal phone calls while at work. 3. On May 14, 2015, the Supervisor informed Complainant that he was not going to extend any more leave and that Complainant was having too many medical appointments. 4. On May 14, 2015, the Supervisor called Complainant a liar and asked him to provide witnesses with regards to the May 5, 2015 incident, and accused the Complainant of playing with him. 5. On May 24, 2015 and April 7, 2015, when Complainant reported the above incident to the Supervisor and the EAD; they told Complainant, "Try to get along." 6. On May 26, 2015, the Supervisor and EAD failed to take action when Complainant reported that he was being followed by another coworker. 7. On June 1, 2015, the Supervisor issued the complainant a written counseling. 8. On July 20, 2015, Complainant's requested reasonable accommodation was denied. The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that Complainant received the Notice on August 11, 2015, but did not file his formal complaint until November 10, 2015, beyond the 15 day time limit. The Agency noted that Complainant acknowledged receipt of the Notice. The EEO Counselor stated in his report that he informed Complainant that he needed to file his formal complaint within 15 days of receipt of the Notice. This appeal followed. Complainant provided several e-mails supporting his assertion that he believed that, because his matter was pending mediation, the time limit for filing his formal complaint should have been tolled. The Agency asked that the Commission affirm its final decision dismissing the formal complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). In 29 C.F.R. § 1614.106, the regulations require the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Agency provided Complainant with the Notice on August 11, 2015, via e-mail. During this time, Complainant, the Attorney and the Agency were trying to resolve the matter through ADR, in lieu of traditional EEO counseling. Mediation did not occur, due to scheduling issues with the parties, until November 2, 2015. ADR did not resolve the matter at that time. The Commission has stated that if the dispute has not been resolved to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that he has the right to pursue the claim further through the formal complaint procedure. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2-17 (Aug. 15, 2015). In the case at hand, the matter was still pending the ADR program when the Notice was issued. 2 When mediation failed, Complainant filed his formal complaint. We note that the formal complaint was filed within 15 days of when ADR failed. Under these circumstances, we find that the time limit should be extended for Complainant. As such, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. §1614.107(a)(2) was not appropriate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations April 26, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 It should be noted that our EEO complaint processing regulations at 29 C.F.R. Part 1614 do not expressly address or define service by electronic mail. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161097 6 0120161097